Kenneth Norman Hill v Repatriation Commission

11 The applicant said that he had moved to the outer edge of the sponson and had a clear view of the ocean both for and aft. He believed that the pilot had died in the Sea Venom. When asked by his counsel how he was affected by the incident at the time and what emotions he felt, the applicant said: "Well, I really don't know, I really don't, … No, I don't know. It's - I guess it was the confusion, a feeling of confusion. I could see it happening there, it wasn't happening to you but it as (sic) happening to somebody and you couldn't do anything about it."

12 In cross-examination the applicant said that he first saw the Sea Venom hanging by its arrester hook and saw the hook snap. The aircraft went down into the water and floated away. The ship was put into reverse and the aircraft remained alongside. The applicant said he could see a man in the aircraft trying to punch his way out of the cockpit canopy. He was not aware that there had been two men in the aircraft and could not explain how one could have escaped if that were the case. 13 The evidence adduced by the respondent about the Sea Venom incident came from two sources. In a publication Sea Fury, Fire Fly and Sea Venom by Stewart Wilson, an historical account of De Havilland's Sea Venom aircraft, appeared an entry: "WZ900 28 April 1966; Landing accident aboard Melbourne in Philippine Sea. Aircraft caught wire but the knuckle broke; insufficient power to go around so crew ejected; aircraft crashed into sea, observer killed."

That publication also described that by 1966 the Sea Venom aircraft had been fitted with "two Martin Baker Mk.4A ejection seats" and the cockpit canopy was a "Jettisonable (by cartridge) rear hinging cockpit canopy". 14 The other evidentiary source was a letter from the Department of Defence, Naval History Directorate, which reported that: "A listing of naval aviation incidents compiled by a former naval aviator states that the aircraft made a good approach and engaged the number two arrester wire on landing. However, the port knuckle parted and the pilot applied full power in an attempt to overshoot the flight deck, but the aircraft crashed over the side. Both aircrew ejected at sea level. The pilot, Lieutenant (P) J R Da Costa RAN, was rescued by helicopter. The observer, Lieutenant (O) E G Kennell RAN, disappeared and his body was not recovered. This accident would be recorded in the ships (sic) log and monthly Reports of Proceedings. Unfortunately, recent attempts to locate the then Department of the Navy file on the accident have been unsuccessful."

15 About the New Guinea incidents, the applicant said that he had been based in New Guinea on two occasions and on one of them he had been required to defend the Captain's house during a riot which he perceived as a life threatening situation. 16 Evidence was also available to the Tribunal from naval records about an incident at HMAS Cerberus on 17 August 1966. On that day the applicant was admitted to the infirmary after collapsing on deck where he had laid motionless for some minutes, then started "shaking" all over. He gave a history of having fainted a few days beforehand. It seems that he was discharged within the day. An outpatient record dated 26 August 1966 records a provisional diagnosis of hysteria. He was referred for examination by a psychiatrist and a further record dated 26 August 1966 notes that there was "no real psychiatric disability". The episode was regarded as hysterical. 17 The applicant's claim before the Tribunal asserted that his psycho-active substance abuse or dependence (his alcoholism) and PTSD arose out of or were attributable to the Sea Venom plane incident, or alternatively from a combination of the electrocution incident followed by the Sea Venom plane incident, the latter contributing to a material degree and aggravating the affects of the former. 18 In its first formulation the claim was made under s 9(1)(a) and (b) of the Act. In its alternative formulation the claim was made under s 9(1)(e) of the Act. Those provisions read: "(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; (c) … (d) … (e) The injury suffered, or disease contracted by the veteran: (i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; but not otherwise."

19 In its reasons for decision the Tribunal confined its consideration to s 9(1)(b). Counsel for the respondent suggests that the Tribunal probably did so as the applicant's claim had more prospect of succeeding under s 9(1)(b) than under the other provisions of the section. That is probably so in relation to s 9(1)(a), but I do not think the same can be said about s 9(1)(e). Having reached a conclusion that the applicant's claim failed under s 9(1)(b) the Tribunal was required to consider the alternative claim which was made under s 9(1)(e). 20 Counsel for the applicant complains that because the Tribunal did not make express reference to s 9(1)(e) that the Tribunal omitted to consider its application to the alternative claim which contended that the Sea Venom incident led to the clinical worsening of PTSD that had already been suffered as a result of the electric shock. Whilst the Tribunal did not expressly refer to s 9(1)(e), it did address the alternative claim in a manner consistent with the provisions of s 9(1)(e) in par 95 of the reasons for decision, and concluded that the alternative claim failed because even if the applicant was already suffering from PTSD as a result of the electrocution, there is no material that points to a clinical worsening of the condition as a result of the Sea Venom incident. This particular finding has not been challenged in this appeal. 21 Having identified the provision of s 9(1) under which the claim was to be considered, the Tribunal then in detail and correctly set out the provisions of the Act dealing with standard of proof. It is sufficient for present purposes to refer to ss 120(1), 120(3) and 120A(3) of the Act which read: "Section 120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." "Section 120(3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." "Section 120A(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) …; (b) … that upholds the hypothesis."

22 The Tribunal discussed the interpretation given to s 120(1) and (3) by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210, and the introduction thereafter of s 120A. The Tribunal noted that the interrelationship of s 120(3) with the provisions of a Statement of Principle (SoP) had been considered in this Court by Heerey J at first instance in Deledio v Repatriation Commission (1998) 47 ALD 261 and on appeal by a Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In its judgment, the Full Court (Beaumont, Hill and O'Connor JJ) said at 97 - 98: " … we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) [of the 1986 Act]. If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

23 The parties to this appeal are agreed that the Tribunal, in discussing the authorities, correctly identified the approach which the Tribunal was required to take in the application of the relevant provisions of the Act. 24 The Tribunal confined its consideration to the claim for PTSD and found that whilst the material before it pointed to the applicant meeting some of the criteria required by the relevant SoP for a finding of PTSD, it did not point to his meeting all of them. Accordingly it found that there was "no material pointing to" the applicant's PTSD arising out of or being attributable to the Sea Venom incident which occurred during his eligible war service. Accordingly the claim for PTSD failed at the third stage of the four stage approach advocated by the Full Court in Deledio. However, the Tribunal went on to consider the fourth stage. It said: "If I am incorrect in my conclusion, I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt. That relates to the man who Mr Hill said was trapped in the cockpit. Having regard to the material in the publication, Sea Fury, Firefly and Sea Venom, by Stewart Wilson, as well as the extract from HMAS Melbourne 25 Years by Ross Gillett, I am find beyond reasonable doubt that the Sea Venom was a two seater aircraft. On the same basis, I also find that the model of aircraft that crashed had both ejection seats and an ejection canopy. I also find that both the pilot and observer ejected from the aircraft. As there were only two people in the aircraft and as they had ejected, there could not have been any person trapped under the canopy. Even if only one person had ejected, one could not be trapped under the canopy as it must have ejected when the other person ejected. Mr Hill could not have seen a person trying to get out of the aircraft as it sank. It follows that I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt."

25 For these reasons the Tribunal held that any PTSD from which the applicant suffers was not a war caused or defence caused injury or disease within the meaning of the Act, and affirmed the decision denying him a pension. 26 In my opinion, the Tribunal fell into error of law in three significant respects. First, I consider that the Tribunal erred at the third stage of the four stage approach in that it engaged upon a fact finding exercise. At the third stage the Tribunal should still be dealing with the hypothesis. Fact finding, insofar as it is necessary, does not arise until the fourth stage. Moreover, in doing so, the Tribunal departed from the requirement of s 120(1) which requires that the Commission (and in turn the Tribunal) shall determine that a disease was a war caused disease unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. Secondly, I consider the truth of the fact about which the Tribunal was satisfied was not a fact inconsistent with the hypothesis that disproved it beyond the reasonable doubt. Thirdly, the Tribunal failed to consider at all the claim based on psycho-active substance abuse or dependence, the SoP requirements for which are considerably less onerous than those for PTSD. My reasons for these conclusions now follow. 27 The parties are agreed that the Tribunal correctly identified the relevant SoP which governed the applicant's claim for PTSD as SoP Number 15 of 1994 as amended by SoP Number 225 of 1995. The factors which must as a minimum exist under the SoP before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of service are: "(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or (b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or (c) inability to obtain appropriate clinical management for post traumatic stress disorder."

At least one of these factors must relate to any service rendered by the veteran. The expression "experiencing a stressor" is defined in the SoP in terms materially the same as the description of a traumatic event in par (a) of the definition of "post traumatic stress disorder" which appears in par 4 of the SoP. 28 The SoP provides that "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from the 4th ed. of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders): "(a) the person has been exposed to a traumatic event in which: (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (ii) the person's response involved intense fear, helplessness, or horror; and (b) the traumatic event is persistently re-experienced in one or more of the following ways: (i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; (ii) recurrent distressing dreams of the event; (iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated); (iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; (v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and (c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following: (i) efforts to avoid thoughts, feelings, or conversations associated with the trauma; (ii) efforts to avoid activities, places or people that arouse recollections of the trauma; (iii) inability to recall an important aspect of the trauma; (iv) markedly diminished interest or participation in significant activities; (v) feeling of detachment or estrangement from others; (vi) restricted range of affect (e.g. unable to have loving feelings); (vii) sense of a foreshortened future (e.g. does not expect to have a career, marriage, children, or a normal life span); and (d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following: (i) difficulty falling or staying asleep; (ii) irritability or outbursts of anger; (iii) difficulty concentrating; (iv) hypervigilance; (v) exaggerated startle response; and (e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and (f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

29 The Tribunal addressed in turn each of the paragraphs of the description of PTSD. In doing so the Tribunal embarked upon stage 3 of the Deledio approach. Its discussion of par (a) was also determinative of the question whether one of the circumstances of service existed, namely whether the applicant had experienced a stressor prior to the clinical onset of PTSD. The Tribunal said (at par 89 of its reasons): "There is material pointing to a Sea Venom's having crashed in the sea when Mr Hill was on the Melbourne in the Philippine Sea. That is found both in the literature I have set out above and in Mr Hill's evidence. There is also material pointing to the observer's having been lost at sea and that is found in the same sources. Mr Hill's evidence of seeing a man in the cockpit is the material pointing to a person's being trapped. All of the material points to his having witnessed an event that involved actual and threatened death to those on board the Sea Venom. It does not, however, point to Mr Hill's having a response that involved intense fear, helplessness, or horror. He described his reaction as a feeling of confusion and a feeling that he could not do anything about it. That may be a response of helplessness but is not one that could be described as 'intense' as required by SoP 15 as amended by SoP 225. As the traumatic event must be both an event of a certain sort and leading to a person's having the specified response; the event involving the Sea Venom does not, for Mr Hill, amount to a traumatic event to which he has been exposed."

30 Counsel for the applicant optimistically contended that the Tribunal misinterpreted the requirement of par (a)(ii) in finding that the adjective "intense" qualified "helplessness". Counsel suggested that the adjective only qualified "fear". I do not agree with that submission. In my opinion the Tribunal was correct in holding that the veteran's emotion whether it be of fear, helplessness or horror had to be "intense". 31 However, in my opinion, the Tribunal erred in finding that the hypothesis did not fit the template requirement of par (a) in the way that it did. The hypothesis advanced by the applicant was that he did suffer an emotion of helplessness that was intense, and sufficiently so to cause him recurrent distressing recollections of the event. As an hypothesis, it fitted the requirement of par (a), and that was sufficient to meet the third stage requirement. It was not until the fourth stage that the Tribunal should have engaged upon the fact finding exercise of whether in truth the applicant's emotion of helplessness was "intense". At that stage, it was for the Commission to disprove the fact beyond reasonable doubt. That is a very different burden of proof to the one which the Tribunal has applied in its reasoning in the passage set out above. 32 There is a pertinent passage in the decision of Heerey J at first instance in Deledio which explains the obligation of the Tribunal if there is a disputed fact which happens also to be a component of an SoP. His Honour said, at 275: "If one of the disputed facts happens also to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case, the factors in the SoP include 70gm/day consumption for at least twenty years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the Commission were to deny this, then s 120(1) requires the Commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to the claim, viz those facts which coincide with facts set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume Committee's recommendations [in its report entitled 'A Fair Go: Report on Compensation for Veterans and War Widows']."

33 The Tribunal found that the requirements of pars (b), (d), (e) and (f) of the description of PTSD in the SoP were fulfilled by material before the Tribunal. However, in relation to par (c), the Tribunal said (at par 91 of its reasons): "There is material in Mr Hill's statements that he makes efforts to avoid thoughts, feelings, or conversations associated with the trauma as described in paragraph (c)(i). Mr Hill must, however, bring himself within two of the other sub-paragraphs of paragraph (c). There is no material pointing to his avoiding activities or people that arouse recollections of the trauma, having a diminished interest or participation in significant activities or have a restricted range of affect or a sense of a foreshortened future. Certainly, he is divorced, but the material points to his associating well with people in the two clubs to which he belongs and with the flatmates with whom he shares his unit over the last six years. There is material pointing to Mr Hill's having an inability to recall an important aspect of the trauma in that it points to his recollection being inconsistent with the historical records of it. Even on that basis, Mr Hill only comes within two, and not three, of the factors set out in paragraph (c)."

34 Again, the Tribunal has erroneously engaged upon a fact finding exercise at the third stage. Moreover, the observation that "Mr Hill must, however, bring himself within two of the other sub-paragraphs of par (c)" imposes a standard of proof which is contrary to the requirement of s 120(1). I consider that there was material sufficient for the purposes of the third stage enquiry to indicate that sub-paragraphs (iv), (v), (vi) and (vii) of par (c) could be fulfilled. Dr Marinovich had expressly addressed the requirements of the fourth ed. of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders and considered that pars (c), (iv), (v) and (vi) were fulfilled. The applicant gave evidence before the Tribunal that he had been questioned on each of these matters by Dr Marinovich and had supplied the information on which these opinions were based. Further, the history recorded by Dr Marinovich includes a report that the applicant had withdrawn a lot into himself, and he did not go out and visit friends. In his evidence before the Tribunal the applicant said that he did not expect to work again, and in that respect implied a sense of a fore shortened future (see par (c)(vii)). 35 Bearing in mind where the onus of proof lay under s 120(1), it is significant that the applicant was not cross-examined about his experiences, emotions and behaviour relevant to the factors stated in the SoP as the minimum requirements of PTSD. 36 I turn now to the Tribunal's conclusion reached at its consideration of the fourth stage of the Deledio approach. Experience in the courts demonstrates that accounts given by eyewitnesses to dramatic events may vary widely. Even with simple two car accidents, courts frequently hear widely divergent accounts from different witnesses. That one person perceives events in a way that differs substantially from the perceptions of another or other witnesses does not mean that the event did not happen. In the present case there is very little evidence about the features of the Sea Venom plane. The Tribunal expresses itself as satisfied beyond reasonable doubt about certain features of the plane but beyond those features the evidence is silent. The evidence does not describe how the ejection seats worked, what equipment was ejected from the plane with them, whether the ejection seats worked in tandem or separately, what debris and other paraphernalia might land in the water with a pilot who ejected at low level, how the canopy should detach, where it might land, and so on. It is impossible to tell from the evidence what may have been in the water which may have led the applicant to gain the impression which he did about what happened if, indeed, his present recollection of events is erroneous. The brief description of the incident in Sea Fury, Firefly and Sea Venom, is inadequate. It implies that the crew ejected whilst the aircraft was airborne. This is contrary to the description of the incident from the Naval History Directorate which says that the aircraft had crashed over the side of the ship, and ejection occurred at sea level. The Naval History Directorate does not indicate the source of this account. It does not rule out that the best eyewitness to what happened in the water was the applicant. On the applicant's account of what happened, it is not difficult to contemplate ways in which the ejection process may not have cleared one of the occupants from the plane. The evidence does not disclose any other explanation for the loss of the observer. The respondent under s 120(1) carried the burden of establishing that the relevant fact did not occur. The relevant fact in this case would be that the veteran had experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury, or that the veteran's response involved intense fear, helplessness or horror. In my opinion a finding beyond reasonable doubt that there could not have been any person trapped under the canopy of the plane as described by the applicant does not disprove these facts. The finding would do no more than indicate that the applicant's perception of what happened was on a matter of detail wrong. The finding does not deny that the applicant witnessed the plane crash which involved actual death. The finding says nothing about the emotional feelings experienced at the time by the applicant. It would be a strangely insensitive person who witnessed a person being drowned who did not experience intense helplessness. The Tribunal's finding does not justify a rejection of the hypothesis at the Deledio fourth stage. 37 The third error of law which I have identified concerns the applicant's claim for psycho-active substance abuse or dependence. The relevant SoP applying to that claim was identified to the Tribunal as Instrument Number 5 of 1994. On the last day of the trial there was discussion about the alternative claim and whether there was a need to call further evidence in respect of it. In these circumstances it is surprising that the Tribunal does not refer to it. SoP Number 5 of 1994 prescribes five factors, one of which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psycho-active substance abuse or dependence with the circumstances of service. The first of those factors is: "Experiencing a stressful event prior to the clinical onset of psycho-active substance abuse or dependence, and maintaining the abuse or dependence post-service."

38 It will be noted that the factor only requires the experiencing of "a stressful event" which contrasts with the requirement in SoP Number 15 of 1994 as amended by Instrument Number 225 of 1995 where "experiencing a stressor" is required being an event which involved "intense fear, helplessness or horror". There seems little doubt on the material and findings of the Tribunal that in witnessing the Sea Venom event, the applicant experienced a stressful event. It was admitted before the Tribunal that the applicant's addiction to alcohol constituted "psycho-active substance abuse or dependence" as defined in SoP Number 5 of 1994. Clearly there was a case to be considered in respect of the claim for psycho-active substance abuse or dependence, and that did not occur.

39 For these reasons I consider that the appeal must be allowed. The decision of the Tribunal must be set aside and the matter remitted to the Tribunal to be determined according to law. The applicant is entitled to an order that the respondent pay his costs of the appeal. I certify that the preceding thirty-nine numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa

Associate: Dated: Counsel for the Applicant: Mr D De Marchi Solicitors for the Applicant: Bill Piper Counsel for the Respondent: Ms E Ford Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 11 and 12 September Date of Judgment: 17 December 2001